"Future Flow" has always lurked as the ogre that might not be tamed.

Let’s start with the positive viewpoint. Big labor (i.e., the AFL-CIO) has agreed, for the first time in its history, to accept a new foreign-worker program for low-skilled jobs, including in construction, food service, and janitorial work—in many ways the mainstay of union membership.

The new foreign-worker program is considered an essential component of an immigration bill by business groups and Republicans. Without it, there is no immigration reform, as Republicans made plain last week when they went home for a spring break without a deal in place on "future flow."

Lobbying negotiators made some progress after that. The AFL-CIO publicized its understanding of the “agreement in principle” with business groups over the weekend. It included wage rates for the new foreign workers that business groups actually like: They will pay the same wage as a similarly situated American worker or the Labor Department's "prevailing wage" for that occupational classification. So far so good.

"We have created a new model, a modern visa system, that includes both a bureau to collect and analyze labor market data, as well as significant worker protections,” said AFL-CIO President Richard Trumka in a statement.

Then came the harder part. Business groups were not willing to sign off as quickly and publicly as Trumka did. (The trust level between the two sides is low.) Sen. Marco Rubio, R-Fla., a key Senate negotiator, made sure to walk back from news of the deal on Sunday, saying that reports of an agreement on work visas were premature.

ADVERTISEMENT

The new W Visa Program under discussion would be part of a sweeping immigration overhaul expected to be on the Senate floor in a month or two. The legislation allowing visa waivers would also give legal status to some 11 million undocumented immigrants currently in the United States.

The “future flow” of foreign workers has always lurked in the background as the ogre that could kill the deal. Sen. Chuck Schumer, D-N.Y., insists that the four Republicans and Democrats negotiating the bill are on track to produce a draft next week for consideration by the Judiciary Committee. There is no reason to think he is wrong, but the last-minute haggling over details has everyone involved in the talks sweating, and probably cursing.

Now, here’s the negative viewpoint—three ways the back-and-forth over work visas could blow up the immigration deal:

1. The Numbers Don’t Match. The AFL-CIO has agreed to allow 20,000 foreign workers into the country by 2015. (That’s up from 10,000 in an offer made last week.) By 2019, the numbers would go up to 75,000. That’s not nearly enough, from businesses’ perspective, to respond to the need. For the past 10 years, illegal immigrants have come into the country to fill these low-skilled jobs at the rate of about 350,000 a year—almost 700,000 in the 2007 economic boom and at about 165,000 in 2011, at the height of the recession.

The whole idea behind the W visa is to replace the illegal population with a legal one. Most of the current illegal population already works in the low-skilled jobs, such as hotel-room cleaning or dishwashing, that would be covered by the W visa. But immigration experts say you can’t expect the current workforce to remain static. The undocumented workers now will not fill future workforce needs.

The prospect of 75,000 visas available seven years from now is not enough to appease business groups or Republicans. Unless labor and business can start talking remotely in the same ballpark, the deal is finished. The AFL-CIO is willing to endorse 200,000 visas per year at some point in the future. That is close to what business groups say they need in terms of numbers, but not in terms of timing.

“It’s a huge breakthrough that there is bipartisan agreement that we need a program like this. The problem is, it’s too small,” said ImmigrationWorks USA President Tamar Jacoby. “If there is a deal, let’s hope we can fix it going forward.”

2. Gaming the Economic Model. Negotiators' ultimate goal is to come up with a system in which the foreign workforce will respond to economic need. If the U.S. unemployment rate goes up, the number of available foreign work visas goes down. Alternatively, if the unemployment rate in a particular job sector is high, the price of a foreign work visa for that same job could go up.

The concept is easy. The execution is not. The basic idea, as outlined by AFL-CIO and business lobbyists involved in the talks, is some type of government commission staffed by labor experts and economists that would identify labor shortages and make recommendations as to the number of work visas that would be available in any given year.

Such a system could certainly work in theory, but there are lots of ways the measurements could run askew and make the annual visa caps as arbitrary as they are now. First, the Bureau of Labor Statistics doesn’t have the finely parsed, regional industry-sector unemployment numbers that would make for a truly useful analysis. Any reliance on unemployment data paints only a broad portrait of the employment situation. Guiding the immigration system based on such numbers would be like steering a Porche with water balloons.

Second, unemployment numbers are lagging economic indicators, reflecting the past and not the future. Overuse of that data would mean that the people charged with making recommendations could find themselves months behind the actual economic need.

Finally, it matters who is in charge. Under the AFL-CIO’s outline, the person running the “Bureau of Immigration and Market Research” would be appointed by the president and confirmed by the Senate. Remember Consumer Financial Protection Board fights? That will be nothing compared with this.

3. Unemployment Is No Joke. The argument against the new visa-waiver program is that Americans don't have jobs. The national unemployment rate is at 7.7 percent. In construction, the rate is nearly double, at 15.8 percent. Construction is also where many undocumented immigrants happen to be employed.

Lawmakers who want to stop the immigration overhaul from happening are fond of saying that there are 11 million Americans out of work now who would be happy to have a fruit-picking or roofing job. It’s an effective argument, particularly for conservative politicians representing blue-collar districts or populist politicians representing labor-friendly districts. Notably, it’s not something you hear from anyone actually involved in crafting the legislation. But eventually, those lawmakers will have to sell this bill to their colleagues who worry about such things.

The argument in favor of the new visa program is best articulated in terms of what happened without one under the 1986 amnesty signed by President Reagan. Once the 3 million newly legalized immigrants moved on to bigger and better things, a new group of illegal immigrants swarmed to the United States to fill those empty, crummy jobs. Now we have 11 million illegal immigrants. But that doesn't make the unemployed American feel any better.

We’ll end on some good news, for what it’s worth. The "path to citizenship" for illegal immigrants appears to be resolving itself, as Republicans are repeatedly being assured that the unauthorized workforce will not get any “special” treatment other than the ability to work and live here without fear of deportation. It’s a path to citizenship, but it will be no different than the path that any other law-abiding immigrant would take. And the illegal guys have to go last.